Second Injury Fund, State of Tex. v. Conrad
| Decision Date | 29 May 1997 |
| Docket Number | No. 2-96-158-CV,2-96-158-CV |
| Citation | 947 S.W.2d 278 |
| Parties | The SECOND INJURY FUND, STATE OF TEXAS, Appellant, v. Adelina CONRAD, Appellee. |
| Court | Texas Court of Appeals |
Dan Morales, Attorney General, Jorge Vega, First Assistant Attorney General, Laquita A. Hamilton, Deputy Attorney Genral for litigation, Delmar L. Cain, Chief, Tort Litigation, Joseph A. Pitner, Assistant Attorney General, Austin, for Appellant.
Banner, Briley & White, L.L.P., Harold White, Sheri Cravens, Wichita Falls, for Appellee.
Before DAY, LIVINGSTON and RICHARDS, JJ.
This appeal presents the question of whether a worker who is born without a limb can receive benefits from The Second Injury Fund of Texas. The Fund challenges a jury verdict that awarded Adelina Conrad lifetime workers' compensation benefits after she lost the use of her left arm and hand as a result of a work-related injury. Because Conrad was born without a right hand or wrist, the jury found that the injury to her left arm rendered her totally and permanently disabled and that the Fund had to pay for her total and permanent incapacity. We find that because Conrad's congenital defect was a "loss" under the statute, Conrad was entitled to benefit from the Fund after she suffered a second injury.
Conrad does not have a right hand or wrist because of a congenital birth defect. While working for Southwestern Bell Telephone Company as a directory assistance operator, she was diagnosed with carpal tunnel syndrome, posterior interosseous syndrome, and lateral epicondylitis in her left hand and arm. After several unsuccessful surgeries, Conrad could not go back to work, and Southwestern Bell fired her in May 1989. Conrad has been unable to work since April 1989.
Conrad filed a workers' compensation claim and settled with Southwestern Bell's workers' compensation carrier for the total loss of use of her left arm and hand. Conrad then went before the Industrial Accident Board seeking total and permanent incapacity benefits from the Fund. The Board denied her claim against the Fund.
Conrad then filed a de novo lawsuit against the Fund. The jury found that Conrad suffers from the total and permanent loss of use of her right hand as a result of a birth defect. Additionally, the jury found that Conrad suffers from the total and permanent loss of use of her left hand as a result of an occupational disease she received in the course and scope of her employment with Southwestern Bell. The trial court entered judgment in favor of Conrad for lifetime benefits.
The Fund has appealed the trial court's judgment claiming that Conrad does not have standing to request or receive benefits from the Fund. The Fund bases its argument on the fact that the statute explicitly limits Fund benefits to a worker who has lost or lost the use of both hands. Thus, because Conrad never had a right hand, she could not lose or lose the use of what she never had.
The Fund also argues in the alternative that there was no or insufficient evidence of a first injury because she could not lose or lose the use of a missing limb that was missing at birth.
Accordingly, our question becomes whether or not Conrad's congenital defect can be considered a previous loss that, when combined with her subsequent work-related injury, is compensable through the Fund.
In 1917, the Texas Legislature addressed the problem of how to compensate an employee when a prior injury, combined with a subsequent work-related injury, renders them more incapacitated than their subsequent injury alone would have incapacitated them by providing that:
If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable because of such an injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury. 1
By enacting this provision, Texas recognized that limiting liability for second injuries would encourage employers to hire handicapped workers. See W. Wiley Doran, Second Injury Fund, 27 TEX. B.J. 231, 231 (1964).
In 1947, the legislature amended section 12c to add the Second Injury Fund to pay for the combined incapacities after a second injury occurs. The legislature also added section 12c-1:
If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently and totally incapacitated through the loss or loss of use of another member or organ, the association shall be liable only for the compensation payable for such second injury provided, however, that in addition to such compensation and after the combination of the payments therefor, the employee shall be paid the remainder of the compensation that would be due for the total permanent incapacity out of the special fund known as 'Second-Injury Fund,' hereinafter defined. 2
In 1971, the legislature amended section 12c-1 to provide that the employer was liable for all compensation and could then be reimbursed from the Fund. 3 However, even in the face of this change, reimbursement from the Fund was only allowed when a combination of injuries resulted in total and permanent incapacity. See Second Injury Fund v. American Motorists Ins. Co., 541 S.W.2d 514, 516 (Tex.Civ.App.--Eastland 1976, writ ref'd n.r.e.); Houston Gen. Ins. Co. v. Teague, 531 S.W.2d 457, 459 (Tex.Civ.App.--Waco 1975, writ ref'd n.r.e.). In 1977, the legislature amended section 12c-1 to provide that the association would be liable only for the compensation payable for the second injury, with the remainder for the total permanent incapacity to be paid from the Fund. 4
In 1989, the legislature repealed section 12c-1, recodified it, and amended it to provide that the Fund would provide lifetime benefits for a worker with a "previous injury" who becomes entitled to lifetime benefits; thus, removing the "lost use" language of section 12c-1:
If a subsequent compensable injury, together with the effects of a previous injury, results in a condition for which the injured employee is entitled to lifetime income benefits, the insurance carrier is liable for the payment of benefits for the subsequent injury only to the extent that the subsequent injury would have entitled the employee to benefits had the previous injury not existed. The subsequent injury fund shall compensate the employee for the remainder of the lifetime income benefits to which the employee is entitled. 5
Finally in 1993, the legislature repealed the 1989 recodification and again recodified the second injury fund provision into the Labor Code with no substantive changes. 6
No matter what language the legislature used--"previously lost, or lost the use" or "previous injury"--its intent was to encourage employers to hire physically disabled applicants by limiting the employers' liability when a handicapped worker is subsequently injured on the job. See William J. Collins III, An Exception for Deception: Why McKennon Should Not Be Extended to Employment Application Misrepresentations of Pre-Existing Injuries, 37 S. TEX. L.REV. 779, 806 n. 176 (1996); Emily A. Spieler, Perpetuating Risk? Workers' Compensation and the Persistence of Occupational Injuries, 31 HOUS. L.REV. 119, 201 (1994). The Texas Supreme Court stated the purpose of the Second Injury Fund was
to encourage the employment of persons physically handicapped by previous injuries. Obviously, an employer would be discouraged from employing such persons if he knew that under the law his insurer would become liable in the event of a second injury for the disability resulting from the combined effect of the two injuries, and not merely for the disability resulting from the second injury considered alone.
Martinez v. Second Injury Fund, 789 S.W.2d 267, 268 (Tex.1990) (citing Miears v. Industrial Accident Board, 149 Tex. 270, 232 S.W.2d 671, 672 (1950)). In fact, it has been noted that the legislature's principal purpose of aiding the handicapped "has been progressively impeded, debased, or completely ignored" when the Second Injury Fund is interpreted. Thomas P. Sartwelle, Workers' Compensation, 32 SW. L.J. 291, 334 (1978).
The version of the statute in effect at the time the second injury occurred will control. See Texas Employers' Ins. Ass'n v. Smith, 592 S.W.2d 10, 14 (Tex.Civ.App.--Texarkana 1979, no writ). The jury found that Conrad's injury to her left hand occurred on June 1, 1989. Thus, the 1977 amendment, which was section 12c-1, controls this case. 7
We can find no Texas case law that addresses the specific question we are faced with today. However, Texas is not the only state with a second injury fund; so, we now turn to an analysis of how other states with second injury funds treat congenital defects.
Five states have held that their second injury fund statutes do not allow apportionment when the employee's prior condition is a congenital defect.
Kentucky has consistently held that, under its statute, congenital defects or deformities are not "disease conditions" that, when aggravated, qualify for apportionment under their second injury fund. See Young v. Wright, 474 S.W.2d 76, 78 (Ky.1971); Giles Indus., Inc. v. Neal, 471 S.W.2d 5, 6 (Ky.1971).
Based on specific statutory language that its second injury fund applies to claimants who had "previously suffered a personal injury," the Massachusetts Supreme Court held that the second injury legislation did not apply to prior congenital defects, such as a dislocation of the lens of the right eye, caused not by "injury" but by disease, toxic conditions in the mother, or transmission of an inherited characteristic. McLean's...
To continue reading
Request your trial